Citing New York City Mayor Michael R. Bloomberg's testimony during the U.S. Senate confirmation hearings of 2nd Circuit Judge Sonia Sotomayor, a federal judge on Wednesday ordered the mayor to attend a three-hour deposition in a discrimination case claiming that two entry-level tests for city firefighters were flawed.
Bloomberg's remarks at the Senate Judiciary Committee's hearing on Sotomayor's nomination to the U.S. Supreme Court indicated that he had a "personal involvement in the events at issue" in the discrimination case, Eastern District of New York Judge Nicholas G. Garaufis concluded in United States v. City of New York, 07-cv-2067.
Connie Pankratz, a spokeswoman for the Corporation Counsel's Office, said the city "intends to honor the court's order."
Last month, Garaufis found that the two tests, which controlled the Fire Department's hiring of new firefighters from 1999 to 2008, had a disparate impact on black and Hispanic applicants.
During the confirmation hearing, opponents of Sotomayor's appointment questioned her qualifications based on her participation in an unsigned 2nd Circuit ruling upholding the decision of officials in New Haven, Conn., to throw out the results of a firefighter test because no blacks had passed it.
The Supreme Court in June reversed the 2nd Circuit, finding in Ricci v. DeStefano, 129 S.Ct. 2658, that New Haven's discarding of the results discriminated against white applicants who had passed the exam.
In his July 16 testimony in Washington, D.C., Bloomberg referred to the lawsuit against the city after stating that he disagreed with the way New Haven officials had handled that city's test.
The mayor added that he had chosen to fight the suit against New York City.
"I think that in fact the tests were job related and were consistent with business necessity," he said. However, he also endorsed Sotomayor's nomination.
About a week after the confirmation hearing, Garaufis ruled in the New York City case that the tests administered by the Fire Department in 1999 and 2002 had a disparate impact on blacks and Hispanics.
According to the plaintiffs expert, the use of the tests resulted in the disqualification or delayed appointment of about 540 minority applicants.
Each test had a threshold score that an applicant had to meet in order to be eligible for appointment. Those who met the threshold were then selected from a list based on their scores.
TWO CRITERIA MET
Garaufis found that the two criteria governing when a high public official could be ordered to attend a deposition had been met: The mayor had information relevant to the case that could not be obtained from any other source and three hours of questioning would not interfere with his official duties.
The mayor has previously been examined at two deposition sessions, lasting a total of eight hours, in a suit brought by 80 women employees of the media company he founded, Bloomberg L.P. The discrimination in that case was alleged to have taken place after Bloomberg left the company to run for mayor in 2001, and he testified as a witness, not a defendant.
The mayor is named as a defendant in the Eastern District case, which was initiated by the U.S. Equal Opportunity Commission in 2007. Garaufis subsequently allowed the Vulcan Society, a professional organization of black firefighters, and three minority firefighters to intervene.
Although Garaufis has ruled that the city tests had a disparate impact, he has yet to determine a second claim that has only been raised by the intervenors: that the use of the two tests reflected an intention on the part of city officials to discriminate.
If the plaintiffs can demonstrate intentional discrimination, they will be able to seek compensatory damages for minority applicants who took the two tests, said Darius Charney, a staff attorney at the Center for Constitutional Rights, who represents the intervenors.
Bloomberg's testimony is needed to prove the intervenors' claim of intentional bias, Charney said. The 2002 test was administered after Bloomberg took office, he added, and the intervenors will seek to elicit information he had as to the tests' discriminatory impact, and why his administration decided to continue using the test.
The city started using a new test in 2008, Charney said.
The finding of disparate impact discrimination permits the plaintiffs to seek a priority in future appointments and an order requiring the city to use a nondiscriminatory process, Charney said.
Pankratz, the Corporation Counsel's spokeswoman, said that discovery has yet to be completed.
A conference with Garaufis is scheduled for this afternoon to chart the course of the litigation.
The city was represented by Georgia Pestana, chief of the Corporation Counsel's labor and employment division, and William Fraenkel and James Lemonedes, both senior counsels.
Special Litigation Counsel Sharon A. Seeley, of the U.S. Justice Department's Civil Rights Division in Washington, D.C., was the lead counsel for the EEOC.
